The Graham amendment is still out there, and it still sucks. Graham’s Senate speech in defense of court-stripping only amplified the sucking.
Hilzoy and Katherine at Obsidian Wings, and Gary Farber at Amygdala have been all over this story. Go read until you’re mad, and then write your Senator. If you’re still mad tomorrow, pick up the phone and take it out on your Senator’s intern.
Gary Farber
“Hilzoy and Gary Farber have been all over this story.”
At ObWings, it’s been both Hilzoy, and the former poster Katherine (R.), recent law school graduate, and longtime heavy-lifter on Maher Arar and other issues of rendition and torture, colloborating on the Graham amendment and what most legislators and folks don’t know about the facts of the cases. Both have long done yeoman work on all these issues, of course.
Although I’ve posted quite a bit on torture issues, and continue to do so, on this particular weekend, they’re doing the hard work, and I’m just trying to point other folks at it. (Well, okay, if you scroll up and down my site, you’ll find plenty of other torture-related posts, as well as plenty of other, more frivolous, stuff as well, to be sure.)
Anyway, this issue goes to the heart of how we, as a people, see justice. And the world, make no mistake, will watch most carefully, and remember for far longer than we might dream.
We must do what is right, and we must be seen to do what is right.
Sojourner
Please don’t include exculpatory evidence that might suggest these are human beings who are being mistreated. These details confuse those who prefer to view detainees as evil animals who deserve what they get.
Life must be kept simple for the black-and-whiters. Otherwise their heads might explode.
Sine.Qua.Non
From Talk Left:
Louise
I would love to call my Senators and their aides and rant about this — but I’m currently living in KANSAS.
Gah. At least it’s temporary.
Katherine
brownback is, well, probably still hopeless, but less hopeless than most republicans.
Louise
Well, ok. I’ll give his office a call. Thanks for the push.
Al Maviva
Please. The Amendment specifically preserves the ability of the detainees to have representation and file a claim within the D.C. circuit contesting their classification as EPW or unlawful combatants. It restores the law to what it was prior to the Al Odah and Rasul cases, which rather insanely extended full court access to non-U.S. citizens, captured on the battlefield and held on non-U.S. soil.
What the Graham amendment does, is cut of the ability of detainees to go to a friendly lunatic judge, like Judge Rheinhardt in the Gherebi case, and seek their court ordered release and big money damages awards on all manner of considerations unrelated to their status as EPW. Go read Gherebi if you want to see the kind of crack that this puts the government in. Every AQ wanker captured in a firefight will file claims under the Federal Tort Claims Act and the Alien Tort Claims Act, alleging everything from assault and wrongful imprisonment, to intentional infliction of emotional harm. Laugh now, sure. But if we continue this trend of giving enemy fighters the run of our courts, we shouldn’t be so naiive as to think they won’t take full advantage of it.
The ultimate result of the left’s efforts to constitutionalize the status of enemy prisoners of war and unlawful combatants will be that the troops will simply stop taking prisoners. Taking somebody prisoner is dangerous business, more dangerous than straight up fighting. It’s not worth it to risk your ass to take somebody prisoner, who can’t be questioned, and who can’t even be held off the battlefield for any length of time. Far better to call for fire, and move on.
Andrew J. Lazarus
Nice try Al, conflating one left-wing judge (Reinhardt) with the conservative SCOTUS that decided Rasul and Al Odah (and of course Padilla and Hamzi). They were responding to the Executive Branch gimmick of singling out Guantánamo as a magical location where no law, other than George Bush’s whim, applied.
Laugh now, Al, but when Hillary throws you in Gitmo for some enhanced interrogation, I want to watch.
Davebo
“The ultimate result of the left’s efforts to constitutionalize the status of enemy prisoners of war and unlawful combatants will be that the troops will simply stop taking prisoners.”
Ludicrous beyond description. A desperate reach at best.
Steve
Ah, the parade of horribles. Funny how, despite Al’s prediction of innumerable frivolous lawsuits, Sen. Graham couldn’t even find one. The various Obsidian Wings posts analyze the pending cases in detail and show how Sen. Graham had to lie about them right and left in order to characterize them as frivolous. In fact, these are very serious challenges, concerning the right to counsel and other fundamental rights, that ought to be heard.
Jim Allen
Ya know, when I first saw the heading for this thread, I assumed it was going to be a continuation of the chili thread.
Al Maviva
Go look up the NATO press releases relating to the capture of EPWs. Oddly enough, we don’t seem to capture many fighters any more, in spite of substantial numbers of them being killed from time to time. Gee, I wonder why that is…
Al Maviva
Moreover, even if the detainees were held on American soil, and even if they had American citizenship, constitutional caselaw up until Rasul and Al Odah denied them a hearing except to contest their classification as EPW or unlawful combatants. The rule was simple – captured on the battlefield, you don’t get your day in court except on a narrow issue of whether the Executive Branch classified you correctly.
And spare me the bullshit about Hilary Clinton. I disagree wtih a lot of her policy ideas but don’t suffer from some visceral loathing that makes me get all stupid about her.
I presume Steve, you have some wonderfully constructive idea about what the government should do with people it captures bearing arms, on the battlefield. Let’s hear it. Please keep in mind that a court trial in U.S. courts is against the Geneva Conventions. Repatriation to their native lands is probably off limits too, under the Anti-torture treaty. So let’s hear it – what do we do with the captured fighters?